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S.R.G. v. D.D.G.

Superior Court of Pennsylvania

December 10, 2019

S.R.G. Appellant

          Appeal from the Order Entered January 16, 2019 In the Court of Common Pleas of Dauphin County Domestic Relations at No(s): 0267 DR 2018

          BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J. [*]


          PANELLA, P.J.

         The trial court denied S.R.G.'s ("Grandmother") petition seeking child support payments from D.D.G. ("Grandfather") for their daughter's child. Grandmother argues the trial court erred in denying her petition as Grandfather has an extensive history of relentlessly litigating his claims for custody of the child. While the trial court found that Grandmother made a compelling argument, it ultimately concluded that the parties did not aggressively assert their custody claims against child's parents; rather, the court concluded that the parties "stepped into the parental void" caused by child's parents. After careful review, we can find no error of law in the trial court's conclusions, and therefore affirm.

         Prior to their pending divorce, the parties were granted legal and primary physical custody of the child through an agreed custody order. The parties' daughter, the child's mother, has a history of mental illness and the parties agree that she is not capable of raising the child. The parties also agree that the child's father has never been involved in child's life, and is currently serving a lengthy prison sentence. However, neither of the child's parents' parental rights have ever been terminated or relinquished.[1]

         After Grandfather filed for divorce from Grandmother, and Grandmother relocated to Florida, the parties agreed to numerous modifications to their custody agreement. Ultimately, the agreement provided for a split schedule of primary physical custody whereby Grandfather exercises partial physical custody of child during summers, spring break, and a two-week period during the fall. Grandmother exercises primary physical custody at all other times. Grandmother had sole legal custody of the child, however grandparents later entered an agreed order providing they would share legal custody, with Grandfather having sole decision-making authority on health and education issues (though not religion) during his period of physical custody only.

         As noted, Grandmother subsequently sought child support payments from Grandfather. Whether a third party[2] may be held liable for child support to another third party is a question of law, which we review de novo. See A.S. v. I.S., 130 A.3d 763, 768 (Pa. 2015).

         Pennsylvania law is clear that parents of a child have a duty to support that child. See 23 Pa.C.S.A. § 4321(2). On the other hand, there is no explicit statutory requirement that a grandparent has any duty to support a grandchild. See id.

         Grandmother claims Grandfather has a legal duty to pay child support to her for their grandchild since grandparents stand in loco parentis to the child. Grandmother asserts grandparents have taken proactive steps to establish themselves as the legal parents of the child and that mother and father have never, and never will, assume parental duties.

         Initially, we have previously held that in loco parentis status alone is insufficient to create a support obligation for a nonparent. See Commonwealth ex rel. McNutt v. McNutt, 496 A.2d 816, 817 (Pa. Super. 1985).

If we were to hold that a stepparent acting in loco parentis would be held liable for support even after the dissolution of the marriage then all persons who gratuitously assume parental duties for a time could be held legally responsible for a child's support. It is not uncommon for a grandparent, an aunt or uncle or an older sibling to assume responsibilities for parenting when the natural parents are absent. These acts of generosity should not be discouraged by creating a law which would require anyone who begins such a relationship to continue financial support until the child is eighteen years old.


         Acknowledging this precedent, Grandmother cites to the Pennsylvania Supreme Court decision in A.S., for the proposition that a duty of child support can arise where a nonparent has taken "affirmative steps to act as a legal parent so that he or she must be treated as a legal parent." See Appellant's Brief, at 12.

         In A.S., the child's stepfather "haled a fit [biological mother] into court, repeatedly litigating to achieve the same legal and physical custodial rights as would naturally accrue to any biological parent." Id., at 770. The court described the case as not a typical one "of a stepparent who has grown to love his stepchildren and wants to maintain a post-separation relationship with them." Id. Instead, the stepfather "ha[d] litigated and obtained full legal and physical custody rights, and ha[d] also ...

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